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OVI Conviction Thrown Out Where State Failed to Follow Breath Test Guidelines

breath test witness ovi ohio administrative code


The Ohio Court of Appeals threw out a conviction for operating a vehicle while impaired by alcohol (OVI) because the state did not demonstrate that the officer followed the procedures for administering a breath test.

In State v. Miller, 2021-Ohio-277, a driver was arrested for OVI and was transported to the police station where he submitted to a breath test. The Defendant filed a motion to suppress the results of the breath test. He argued that the officer did not comply with the Ohio Administrative Code, which provides the guidelines for administering the breath test. Specifically, the Defendant stated the officer failed to adhere to three guidelines:

  • The age of the solution in the breath test machine was outside the acceptable range.
  • The solution in the machine was not properly refrigerated at the time the officer administered the test
  • Records of the machine’s calibrations and maintenance were not kept for at least three years.

Officer Failed to Testify That He Followed Breath Test Guidelines

The state only needs to provide minimal evidence that the guidelines in the Ohio Administrative Code were satisfied. State v. Johnson, 137 Ohio App. 3d 847, 854 (12th Dist. 2000) But when the officer testified, he did not say whether he followed the guidelines. Also, the state did not ask any questions about whether everything with the breath test machine was properly maintained.

In its decision in Miller, the Court stated, “Basic testimony that the Administrative Code was followed may have been sufficient. However, where the record contains no evidence whatsoever that the machine was maintained according to the regulations, we cannot say that the prosecution met its burden.” Id.

Since the issues with the breath test were presented by the Defendant, the state and the officer were required to produce some evidence to show they followed the procedures of the Ohio Administrative Code. There was limited testimony from the officer regarding compliance with the procedures. Because the state failed to meet its burden to demonstrate compliance, the Court of Appeals had no choice but to suppress the breath test results.

Cases involving the breath test machine have many instances where a challenge can be made to potentially invalidate the results. It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether the state substantially complied with all testing procedures and requirements. If you have questions about your Columbus criminal or OVI related charges, talk to our defense attorneys at 614-361-2804.

Written by Anthony Iori, Riddell Law Associate